Anderson v. Joint School District No. 3

129 N.W.2d 545, 24 Wis. 2d 580, 1964 Wisc. LEXIS 519

• Court: Wisconsin Supreme Court
• Decided: July 20, 1964
• Status: Published

Opinions

Wilkie, J.

The sole issue raised on this appeal is whether the trial judge was correct in ruling that, as a matter of law, the, defendant school district did not violate the safe-place statute with reference to the glass view panels in the swinging door.- -

.The jury found that the school, district failed to meet the standard of care imposed on it by the safe-place: statute to make the school premises, including this door, as safe, or free from danger,, as their nature would reasonably permit.¹ In directing a verdict for the defendant school district, notwithstanding the jury’s conclusion, the trial court determined that there was no credible evidence to support the jury finding.

The general rule regarding directed verdicts was stated by this court in Smith v. Pabst ² as follows, at page 491:

“ ‘A verdict may properly be directed only when the evidence gives rise to no dispute as to the-material issues or only when the evidence is so clear and convincing as reasonably to permit unbiased and impartial minds to come to but one conclusion.’ ” Citing Rusch v. Sentinel-News Co. (1933), 212 Wis. 530, 533, 250 N. W. 405.

More recently, we held in Schumacher v. Klabunde ³ as follows, at page 87:

“ Tn determining whether or not the trial court was in error in directing the verdict this- court must take that view of the evidence which is most favorable to the party against whom the verdict is directed.’ Mueller v. O’Leary (1935), 216 Wis. 585, 587, 257 N. W. 161.”

Applying these rules to the instant case, we are satisfied that there was-credible evidence to support the jury’s determination of a violation of the safe-place statute by. the school district. From the testimony of the man who installed the glass view panels, the jury could have concluded that the glass was ordinary window glass of the thickness of .118 inches. It was undisputed that Carol placed her right hand on the view panel, that she pushed to open the door exerting no extraordinary force, and that the glass broke, cutting her arm. Under the circumstances, a jury could infer that the glass was not thick enough or strong enough and that, accordingly, the school district has not provided a door that was as safe or free from danger as the nature of the premises, including the door, would reasonably permit.

Both parties rely on the recent case of Raim v. Ventura.4 In that case, the plaintiff, a ten-year-old girl, during a rainstorm, either ran or walked rapidly toward a glass entrance door of a cheese market. Head down, she struck the glass door, which was á single panel of quarter-inch plate glass, bordered with aluminum strips and a metal “pull” bar. We affirmed a directed verdict on behalf of the defendant market owner, stating, at page 71: “Had the glass broken under more-normal use thereof, such as by a slamming or by a person’s being pushed or crowded into the door, a jury issue would have been presented.”

In the case at bar the use being made of the view panel when Carol pushed on it to open the door, was, in our view, a normal use that reasonably could have been anticipated by the school district. This fact is sufficient to distinguish the present case from Raim, and to raise' a jury question on whether the school district yiolated the safe-place statute.

In Raim we stated, at page 71:

“Whether a structure falls short of the standard required under the safe-place 'statute is ordinarily a factual question to be resolved by the jury.”

Since such a factual question was presented here, and there was evidence to support the jury’s finding, the.trial judge’s ruling that the school, district did not violate the safe-place statute was erroneous and the verdict should be reinstated.⁵

By the Court. — Judgment reversed, and cause remanded for entry of judgment in favor of plaintiffs.

1 Secs. 101.06 and 101.01 (11), Stats.

2 (1940), 233 Wis. 489, 288 N. W. 780. See also Thoni v. Bancroft Dairy Co. (1949), 255 Wis. 577, 39 N. W. (2d) 690.

3 (1963), 19 Wis. (2d) 83, 119 N. W. (2d) 457. See also Radloff v. National Food Stores, Inc. (1963), 20 Wis. (2d) 224, 121 N. W. (2d) 865, 123 N. W. (2d) 570.

4 (1962), 16 Wis. (2d) 67, 113 N. W. (2d) 827.

5 Neither of the parties has raised the issue as to whether or not the plaintiff was a pupil at the time of the accident and as to whether or not she was an employee or frequenter. See our recent ruling in Niedfelt v. Joint School Dist. (1964), 23 Wis. (2d) 641, 127 N. W. (2d) 800. For the reason that this issue has not been raised or presented we do not consider it herein.